---

Data Retention (EC Directive) Regulations 2009

My Lords, we have had an interesting discussion. The noble and learned Lord, Lord Goldsmith, said in the course of our debate that it is important to have access to this kind of data information for the purposes of national security and the pursuit of crime. I repeat what I said at the beginning of my earlier remarks: there is no difference between us; that is not the issue. The issue is the terms of this statutory instrument and its relationship with other legislation. Thereafter we had the beguiling argument that this piece of legislation is not about access, it is only about retention. But it is linked to access legislation, and the access legislation as it stands is highly unsatisfactory. We are being asked to agree to this SI in the absence of having access legislation that is satisfactory. We do not know when we are going to have the opportunity to see that legislation amended. No timetable has been offered and we do not know the relationship between RIPA, and possibly a modified RIPA, and the SI. As things stand, we are being asked to agree to an SI linked to the present RIPA, and that is highly unsatisfactory. Furthermore, I fear that the Minister has failed adequately to explain to your Lordships’ House how this statutory instrument will work in practice. He briskly dismissed a large number of important points raised in the debate, including deep packet inspection, which is relevant. I fear that it is necessary to know the answer to that question in order to be convincing to this House; it is not just a matter of mere technicality. The great difficulty with all this legislation is that there are matters of great political importance to the liberties of this nation which are disguised as ostensibly technical matters. It will not do that we are not the master of what the technology is giving us, and therefore unable to understand its political import. We must be able to have the debate on terms that enable us to tackle both. Although he was asked specifically, the Minister did not give an answer to the question about the relationship between this statutory instrument to the Interception Modernisation Programme, and when or whether we can expect any primary legislation. For an issue of this importance, this House and this Parliament need primary legislation. For five and a half years I worked in the European Commission and I know something about its habits. As my noble friend Lord Northesk commented, this particular bit of legislation in its German version is now up for scrutiny for its compatibility with the ECHR. Against that background, I think it is unlikely that the Government will receive a letter of mise en demeure from the European Commission, which is the first stage of legal proceedings in infringement. I am not impressed by the notion that we have to pass this piece of legislation now in order to avoid infringement proceedings. Given the importance of the matters we are scrutinising, I repeat that I beg the Government to withdraw these regulations and produce at the earliest opportunity proper, primary legislation on communications data. For these reasons, I want to test the opinion of the House. Division on Baroness Neville-Jones's amendment. Contents 89; Not-Contents 93. Baroness Neville-Jones's amendment disagreed. Motion agreed.